A Potpourri of New Restrictions and Requirements for Washington Employers

Articles

Apr 06, 2018

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Washington employers may have to revise job applications, add protected categories to their policies against discrimination, provide “safety accommodations” to victims of domestic violence, and make other changes to comply with various bills that passed the legislature and were signed by Governor Inslee this year.

In separate articles, we discuss the new Gender Equity Act and a trilogy of #MeToo bills soon to be in effect. Below is a discussion of some other new bills affecting Washington employers.

ESHB 1298: The Washington Fair Chance Act, aka the “Ban-the-Box” Bill
As Seattle and other local jurisdictions have already done, Washington State has now adopted “ban-the-box” legislation statewide, prohibiting employers from inquiring (either in writing or orally) about an applicant’s criminal history background before making an initial determination whether the applicant is otherwise qualified for the position at issue. Likewise, an employer may not advertise open positions in such a way as to exclude applicants with criminal records from applying.

Violations of these requirements are subject to statutory penalties. The first violation will result in a notice of violation and assistance with compliance. The second violation will result in a penalty of up to $750. Every violation thereafter will be subject to a penalty of up to $1,000. No private cause of action is created in this statute.

The provisions of this bill do not apply to (1) applicants who may have unsupervised access to children under 18 years of age or a vulnerable individual, (2) employers, including financial institutions, that are expressly permitted or required to consider an applicant’s criminal record, (3) employment by law enforcement or criminal justice agencies, (4) nonemployee volunteers, or (5) entities that are self-regulated under the Securities Exchange Act.

This new statute does not preempt either the Washington fair credit reporting act or the federal Fair Credit Reporting Act requirements. Thus, if an employer wishes to acquire a criminal background check from a third party after determining that the applicant is otherwise eligible, the employer must continue to give all the required FCRA and WCRA advance notices, must obtain advance authorization from the applicant, and, if subsequently deciding not to hire the applicant based on the background report, must provide a copy of the report to the individual along with a statement of his or her rights under the FCRA.

ESHB 1298 goes into effect on June 7, 2018. Implementing regulations will be publicized later this year.

HB 2661: Prohibiting Discrimination and Retaliation Against Victims of Domestic Violence, Sexual Assault, and Stalking, and Requiring Safety Accommodations
For ten years, Washington has required employers to provide reasonable leave to employees who are themselves victims of domestic violence, sexual assault, or stalking, or who have a family member who is such a victim and needs the employee’s assistance. RCW 49.76. An employee who believes that he or she was improperly denied leave or was the subject of retaliation for seeking leave can bring a private cause of action.

Effective June 7, 2018, new employment protections have been added for victims and survivors of domestic violence, sexual assault, or stalking, including prohibitions of discrimination and a requirement that employers provide reasonable safety accommodations in the workplace. HB 2661.

Prohibiting employment discrimination: Employers may not refuse to hire, discharge, or otherwise discriminate or retaliate against an applicant or employee because he or she is a victim of domestic violence, sexual assault, or stalking. Likewise, an employer may not discriminate or retaliate against an individual that the employer perceives to be such a victim. Employers should amend their antidiscrimination policies to add “victim of domestic violence, sexual assault, or stalking” as a protected category.

Providing reasonable safety accommodations: HB 2661 also requires employers to provide “reasonable safety accommodations” requested by an individual who is a victim of domestic violence, sexual assault, or stalking. The statute provides a nonexclusive list of what might be reasonable safety accommodations, including a transfer, reassignment, modified schedule, changed work telephone number and e-mail address, changed workstation, installed lock, or implemented safety procedure. Employers must consider these and other adjustments to a job structure, facility, or work requirement in response to an actual or threatened situation. The statute does provide that an employer may assert an affirmative defense that such accommodation would impose an undue hardship on the operation of the business. An “undue hardship” is one that requires significant difficulty or expense.

An employer may request verification that the requested safety accommodation is for the purpose of protecting the employee from domestic violence, sexual assault, or stalking. A written statement from the victim of the need for the accommodation is sufficient to meet this requirement.

SHB 2097: Limitations on Requesting or Disclosing an Employee’s Religious Affiliation
The primary purpose of SHB 2097 is to prohibit disclosure of an individual’s religious affiliation by or to law enforcement agencies. The bill also, however, adds a new section to the Washington Law Against Discrimination (“WLAD”) pertaining to employment. Effective June 7, 2018, an employer may not require an employee to disclose a sincerely held religious affiliation or belief, unless the disclosure is for the purpose of accommodating the employee’s requested religious accommodation. Additionally, an employer may not disclose an employee’s religious affiliation to another employee, unless the employee expressly consents to the disclosure and has knowledge of its purpose.

SHB 2822: Changing the Definition of “Service Animal” Under WLAD
In response to increasing complaints related to assertions that various exotic animals or pets are service animals that must be permitted in areas of public accommodation (e.g., restaurants), the legislature enacted a new definition of “service animal” under the Washington Law Against Discrimination (WLAD), RCW 49.60.

Although the intent of this bill was to regulate the use of service animals in public accommodation situations, it will likely also be found to apply in employment settings. Under RCW 49.60.180, employers must not discriminate against an employee based on “the use of a trained dog guide or service animal by a person with a disability.” Currently, “service animal” is defined as “an animal that is trained for the purpose of assisting or accommodating” a person with a disability. Effective January 1, 2019, that definition changes to “any dog or miniature horse...that is individually trained to do work or perform tasks for the benefit of the individual with a disability.” The reference to a miniature horse may apply only in public accommodation situations, but the definition is unclear.

The new definition requires that the work or tasks performed by the service animal must be “directly related to the individual’s disability.” Several nonexclusive examples of what constitutes “work” or “tasks” are provided, such as helping seeing-impaired individuals to navigate, alerting hearing-impaired individuals to the presence of people, providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting to an allergen, retrieving items, providing physical support and assistance with balance and stability, and assisting individuals with psychiatric and neurological disabilities by preventing impulsive or destructive behaviors. Neither crime deterrence effects nor provision of emotional support, well-being, comfort, or companionship constitutes “work" or "tasks” under the new definition.

Employers should be cautious, however, about automatically denying accommodation requests involving animals that may not meet the new state definition. At a minimum, there may be a different applicable definition depending on where the employee works. For example, Seattle has a facially broader definition of "service animal" (SMC 14.04.030(X)), as does unincorporated King County (KCC 12.18.020(N)). So while this new state definition may provide employers with some protections, an employer should consult with an attorney before denying the use of a purported service animal.

Seattle Employers, ICYMI: Changes to Seattle’s Paid Sick Leave Ordinance
After the publication of the state regulations pertaining to the Washington paid sick leave law, Seattle made changes to its own paid sick leave ordinance to align with the state regulations in certain aspects (though not all). The new Washington law applies only to nonexempt employees; the Seattle ordinance applies to both nonexempt and exempt employees. While employers generally made changes to their sick leave policies applicable to nonexempt employees to comply with the new state regulations, some employers still need to amend their sick leave policies (including PTO policies if used for paid sick leave compliance purposes) applicable to exempt employees who work in Seattle in order to be compliant with the Seattle ordinance.

Specifically, effective January 14, 2018, paid sick leave policies for all Seattle employees may no longer have caps on usage of paid sick leave, but may still cap the amount carried over each year. Also, carryover requirements now also apply when the leave is frontloaded. Additionally, paid sick leave must be available for use by the 90th day of employment (rather than the prior 180-days requirement), and if a former employee returns to work for the employer within a year (rather than the prior seven-months requirement), any unused paid sick leave must be reinstated.

As a reminder, the Seattle ordinance has different accrual or carryover requirements for employers with 50 or more employees worldwide (including employees of integrated entities) that apply to both exempt and nonexempt employees. Further, the Seattle ordinance also applies to employees who may be based outside Seattle but work at least 240 hours a year within the Seattle city limits. If you have any questions about whether your plan is compliant with the Seattle ordinance, you should consult an attorney.

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